Court File and Parties

Court File No.: Sudbury 09-3810 Date: 2012-07-16 Ontario Court of Justice

Between: Her Majesty the Queen — and — D.M.

Before: Justice Randall W. Lalande

Heard on: May 17, July 19, 22, September 13, November 9, December 23, 2011 and February 28, 2012

Reasons for Judgment released: February 28, 2012 Reasons on Sentencing released: July 16, 2012

Counsel:

• Kara Vakiparta, for the Crown
• George Fournier, for the accused D.M.

REASONS ON SENTENCING

1: INTRODUCTION

[1] On May 17, 2011 Mr. D.M. entered a plea of not guilty to an amended information alleging that between June 1 and 30, 2009 he 'maimed' L.M. thereby committing an aggravated assault.

[2] The child, L.M. was born on […], 2009. The injuries he sustained giving rise to the charge occurred within approximately the first 30 days of his life.

[3] The trial took six days and extended over a period of several months. The court provided lengthy reasons for judgment released on February 28, 2012. Mr. D.M. was found guilty of the included offence of assault causing bodily harm.

[4] A pre-sentence report was ordered. The report was completed on May 14, 2012. The original sentencing date of May 15, 2012 was adjourned and re-scheduled to June 29, 2012 at which time the court heard final submissions from counsel. The sentencing hearing was then adjourned to today for decision.

[5] In addition to the pre-sentence report a number of letters and documents were filed by Mr. D.M. and entered as exhibits. These included the following:

a) An undated letter from […], confirming that Mr. D.M. has been employed with the company for the past year and is considered as an exemplary and valued employee;

b) An undated letter from Northern Ontario Multi Discipline Athletic Arts Academy Ltd., confirming that Mr. D.M. is a respected and dedicated member of the academy who assists in the instruction and training of martial arts;

c) A letter dated June 28, 2012 from John Howard Society of Sudbury confirming that Mr. D.M. is enrolled in the "New Leaf" Anger Management Program which began on May 2, 2012 and was scheduled to be completed on July 11, 2012. Mr. D.M. was referred to as a good and active participant who showed insight into the material presented;

d) Three certificates. The first is dated August 20, 2009. It confirms Mr. D.M. completed a parenting program at the Sudbury and District Health Unit. The next two certificates dated November 9, 2009 and November 12, 2009 confirm that Mr. D.M. completed parenting programs at the Child and Family Centre. The certificate dated November 12, 2009 refers to completion of an eight week Community Parent Education Program;

e) A letter of support from N.B. with whom Mr. D.M. was involved in a relationship from July 2004 to July 2008. They are the biological parents of P.M. who is now 5½ years old. Ms. N.B. is supportive of Mr. D.M.' relationship with P.M.. She has been supervising his visits and speaks positively about his interaction and bonding with P.M.;

f) A letter from A.D. dated June 27, 2012. She indicates that Mr. D.M. has become an important part of her life and has bonded with her two children. She expresses concern (as does Ms. N.B.) about Mr. D.M. losing his positive connection with the children and his son P.M. if he is incarcerated;

g) A reference letter from J.N. dated June 28, 2012. She describes Mr. D.M. as a caring, honest and reliable person.

[6] The pre-sentence report prepared at the court's request is generally positive. The sources interviewed provided information consistent with the information of those who wrote the above-noted letters of support. The author of the report, Ms. Juli Patterson, describes Mr. D.M. as follows:

"The subject is a thirty-two year old male...He has no prior criminal record on file. He is a young man who maintains employment, associates with a positive peer group and there is no indication that drugs or alcohol are an issue. The subject was raised in a loving and pro social lifestyle with no substance abuse within the family home.

Collateral sources indicate that the subject is taking ownership for his mistakes and responsibility for his actions. He has completed several parenting programs and is currently attending "Anger Management" that where (sic) not mandated and by all accounts is doing well and making changes.

Collateral sources also indicate that supervised access with the subject's son is going well, he is open to suggestions and moving toward unsupervised access, in the future.

The subject's family play a supportive role in his life and that of his children and will continue to be there for him.

There is every indication that the subject will not be before the court again and would be suitable for future community supervision."

[7] D.M. and L.N. are the child's biological parents. Ms. L.N. provided a Victim Impact Statement which was entered as an exhibit. She describes how her life, L.M.'s life and the lives of her immediate family members have been impacted since the discovery of L.M.'s injuries. As a result of the ongoing investigation, Ms. L.N.'s two children, (L.M. and K.) were apprehended. Her role as a full-time mother was interrupted for a lengthy period extending almost 2½ years.

[8] Ms. L.N. described how she was personally traumatized when she found out about L.M.'s injuries. In her own words she states:

"In the blink of an eye my life turned from joy and happiness to my worst nightmare".

She also stated:

"The one thing I will never understand is why this happened to my son. How Mr. D.M. could look at his beautiful, innocent new born baby and injure him will forever remain a mystery to me....My family and I will continue to move forward in our lives and knowing that L.M. will have some justice for the harm that was inflicted upon him by Mr. D.M. gives us closure, closure that we have been patiently awaiting for almost three years."

Ms. L.N. made a specific request that Mr. D.M. have no direct contact with her at any future time. She expresses concern over the issue of Mr. D.M.' access to L.M. in the future.

2: BACKGROUND

[9] L.M.'s injuries were described in detail in my reasons for judgment. For sentencing purposes, it shall only be necessary to provide a summary of the injuries as follows:

a) On June 29, 2009, Dr. Goodale observed a small six to seven millimetre purplish bruise on L.M.'s right cheek. She also discovered that his sublingual fraenulum, although mostly healed, had been torn. He was sent to hospital and admitted by Dr. Murray who ordered a skeletal bone survey and contacted the Children's Aid Society;

b) L.M. was referred to Dr. Baird, (a paediatric emergency physician) who in consultation with Dr. Nizzero who is a radiologist found L.M. to have fractures to the ends of both femurs near the knee joints. A similar fracture was also seen at the upper end of the left tibia (which is the shin bone). These fractures were referred to as metaphyseal fractures;

c) L.M. was also found to have a fracture of the ninth right side rib close to the spine. He was sent for a nuclear bone scan which was interpreted by Dr. Webster who confirmed the injury to the ninth rib as well as an injury to the seventh rib and possibly the sixth rib. These were generally described as rib fractures;

d) L.M.'s file was sent to the Hospital for Sick Children at Toronto. The results were reviewed by two paediatric radiologists. They confirmed the injuries above-described. They felt that there may also have been a fracture to the right tibia close to the knee. Further, they felt that L.M. may also have sustained a fracture to the shoulder end of the humerai of both arms.

[10] Dr. Baird testified that infants of this young age have extremely flexible and pliable ribs which are not easily fractured and which would require a tremendous amount of force to break. In his view, types of forces that cause these kinds of injuries and accidental circumstances may include a motor vehicle accident or a high freefall. His results suggest that L.M. was squeezed forcefully around the chest by an adult where the fingertips were compressing the posterior ribs such as if he was held face to face with hands around the chest from the front. Squeezing in this position would cause a force over the posterior ribs which are supported at their connection to the vertebral column. He described the area of the break as protected and not prone to movement. The location of the rib fracture suggests there was direct pressure applied at the break point.

[11] In terms of the metaphyseal fractures, Dr. Baird gave the opinion that the types of forces required to cause such injuries would typically involve an intense wrenching, twisting or flailing of the rib. He gave the example of an adult grabbing a leg or arm and twisting it forcefully or of an infant being pulled forcefully by a limb or an infant being shaken. Dr. Baird concluded that L.M. did not fracture his own bones and absent a serious enough accident, the only source of force would be from an adult person.

[12] The injuries to L.M.'s bones cannot be dated and it cannot be said whether they were simultaneously or serially inflicted. Although Mr. D.M. caused the injuries, it cannot be determined when they were caused or whether they were caused all at once or at different times.

[13] The injuries caused to L.M., a young and helpless child, are serious and constitute a very significant aggravating feature to the case.

3: THE LAW

[14] Mr. D.M. was charged with the offence of aggravated assault contrary to section 268 of the Criminal Code. Everyone who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.

[15] After trial, Mr. D.M. was found guilty of assault causing bodily harm contrary to section 267 (b) of the Criminal Code. A person found guilty of the indictable offence of assault causing bodily harm is liable to imprisonment for a term not exceeding 10 years.

[16] Counsel are in agreement that L.M. suffered serious personal injuries. A conditional sentence authorized under section 742.1 of the Criminal Code is not available for a serious personal injury offence as defined in section 752 of the Criminal Code.

[17] Counsel have made reference to a number of cases relevant to the principles of sentencing. Although the cases referred to are helpful to provide guidance in terms of the application of the principles of sentencing and ranges of periods of incarceration to be considered, each case must be determined on its own facts.

[18] The court has paid special attention to the decision of R. v. McCauley, [2007] OJ No. 1593 decided by Justice Casey Hill of the Superior Court. In that case, a female accused was sentenced to a period of 12 months imprisonment for violently shaking her newborn baby shortly after returning from the hospital. She was 20 years of age and had no criminal record. Although she showed little remorse, she did plead guilty to the offence. Justice Hill provided a comprehensive review of some generic principles applicable to child abuse cases. His non-exhaustive overview included the following points:

a) The law must protect children and those who are defenceless from unwarranted bodily interference;

b) Denunciation and deterrence are the paramount sentencing considerations in child abuse sentencing;

c) While the appropriate sentence must depend on the particular facts in each case, a contested typical case of Shaken Baby Syndrome may attract a sentence of 3 to 5 years imprisonment although the range must extend to accommodate the rare, exceptional case;

d) The objectives of denunciation and deterrence are particular pressing in child abuse cases with the result that incarceration is generally preferred, however, in some cases a conditional sentence may be considered;

e) Parents cannot escape all responsibility for their actions simply by relying on their own problems;

f) Offenders with low intellectual ability or poor anger control who shake a child in frustration cannot on that account alone escape incarceration although frustration by an unskilled and immature parent is a far cry from the deliberate infliction of harm;

g) Evidence of a pattern of abuse is an aggravating factor;

h) Permanent injury to the child increases the seriousness of the crime;

i) Summoning medical assistance promptly for the child tends to mitigate the severity of the circumstances;

j) Post arrest acknowledgment of anger control problems and voluntary steps toward addressing control measures can serve to temper the sentence to be imposed;

k) As with most crimes, remorse of the offender contributes to mitigation of sentence.

4: POSITION TAKEN BY COUNSEL

[19] Mr. Fournier reminded the court that Mr. D.M. was found guilty of assault causing bodily harm and not aggravated assault as originally charged. He made proper reference to the letters and documents filed as exhibits. He stressed the important of the relationship that Mr. D.M. continues to nurture with his children.

[20] Mr. Fournier highlighted that Mr. D.M. is employed, has no criminal record and has established a fairly new and positive relationship with Ms. A.D.. He has become part of her life and he has bonded with her two children. In Mr. Fournier's submission, a lengthy prison sentence would certainly impact on the inroads that Mr. D.M. has made in accessing his own children and bonding with Ms. A.D.'s children.

[21] Mr. Fournier made reference to the decision of R. v. Dosser [2010] A.J. No. 406, 2010 ABCA 128, 477 A.R. 241, decided by the Alberta Court of Appeal on April 13, 2010. In that case, the Crown unsuccessfully appealed Mr. Dosser's 90-day intermittent sentence plus one year probation. The Crown had sought a sentence of 15 to 18 months imprisonment while Mr. Dosser had sought a conditional sentence of 6 to 9 months.

[22] On the basis that Mr. D.M. is not likely to re-offend and is an excellent candidate for community supervision, Mr. Fournier suggested a non-custodial sentence or in the alternative a 90 day intermittent custodial sentence followed by probation.

[23] The Crown distinguished the facts upon which the Dosser decision was based. In that case, the parties agreed that the mother was immature and unskilled, acted out of emotional upset, frustration or temper and did not fully appreciate the serious injuries which might result. Moreover, the injuries were not as extensive as those inflicted on L.M..

[24] The Crown proposed that the interests of denunciation and deterrence in this case require a period of custody in the range of 18 months plus 2 years probation. The Crown referred to several cases including Justice Lalonde's decision in R. v. S.G. [2011] O. J. No. 1604 (S.C.), decided on April 7, 2011. In that case, the accused assaulted her two year old daughter. The child sustained a fracture to her right arm and right leg. She also sustained visible bruising to various parts of her body. Justice Lalonde concluded that the principles of denunciation and deterrence were paramount and warranted nothing less than a period of jail. The accused was sentence to 2 years less one day plus 3 years probation for the offence of aggravated assault.

[25] The decision of R. v. McCauley, [2007] O.J. No. 1593, (S.C.), has already been referred to. It was decided by Justice Hill in March 2007 and also involved an offence of aggravated assault. The accused was 23 years old. She suffered from poor impulse control and depression. She became overwhelmed in caring for her child. She caused her 11 month old son to suffer life threatening brain injuries from vigorous shaking. She was sentence to 12 months custody plus 3 years probation. Justice Hill emphasized that Ms. McCauley grossly abused her infant son's trust, had little insight into her actions and had taken no voluntary steps to deal with her anger issues. He also stated that the wider public interest demanded nothing less than a period of incarceration.

[26] The decision of R. v. A. E., [2000] O.J. No. 2984, 146 C.C.C. (3d) 449 (C.A.), was decided by the Ontario Court of Appeal in August 2000. The accused was convicted of assault causing bodily harm and sentenced to 22 months imprisonment followed by 3 years probation. The assault was against his 2 month old baby daughter. The baby's mother had noticed that she had a swollen leg. At hospital, it was determined that she had sustained multiple fractures which were at different stages of healing. The Children's Aid Society removed the child from the mother's care. The accused denied hurting his daughter and said that he was merely bending her knees and pushing on her ribs because she was not breathing properly. The court heard evidence from others that the accused had handled the baby roughly.

[27] At trial, Justice Masse accepted the evidence of the paediatrician and that the acts of the accused were performed with significant violent force that went well beyond any force needed to care a young baby.

5: ANALYSIS

[28] In determining an appropriate sentence, the court must consider relevant aggravating and mitigating factors. These would include the following:

Aggravating Factors

• Section 782.2 of the Code states that offences involving abuse of one's child and abuse of a position of trust are deemed to be aggravating circumstances;

• The injuries inflicted on the child L.M. occurred within the first 30 days of his life;

• The injuries were serious involving metaphysical fractures of both femurs and rib fractures. Other injuries were likely but less definable. These included a fracture to the right tibia and the shoulder area of the humerai of both arms;

• The injuries required a tremendous amount of force especially in order to fracture the ribs;

• There is little by way of directly expressed remorse although in the pre-sentence report, Mr. D.M. is said to have taken ownership for his 'mistakes' and responsibility for his 'actions'. On that basis, the degree of remorse, if any, is difficult to determine;

• Mr. D.M. did not tell Ms. L.N. what he did and allowed matters to linger although he knew or should have known that the child was injured.

Mitigating Factors

• Mr. D.M. is 32 years of age and does not have a criminal record;

• He is employed full time and is considered to be a valuable employee. He has enrolled in an anger management program;

• He has the strong support of his new partner, family, friends and employer;

• He has co-operated with access restrictions to his children and shows a determination to make future positive steps to re-integrate himself in their lives;

• The pre-sentence report is positive and indicates that Mr. D.M. is likely not be before the court again. He is also considered as a good candidate for community supervision.

[29] The court must balance all factors while taking into account the fundamental principle of proportionality. In other words, the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[30] It is clear on the facts of this case that denunciation and deterrence are the dominant sentencing principles to be considered by the court. On that basis, a period of incarceration is required. The sentence, generally speaking, should be within an appropriate range taking into account sentences contemporaneously imposed for similar offences all while maintaining that each case must be dealt with on its own unique facts and circumstances.

[31] It is most difficult to conclude whether the injuries to L.M. resulted from an incident or incidents of abuse which were protracted or isolated. The court cannot assume on these facts that there was some type of ongoing, intentional plan to injure.

[32] The mother did not notice anything strange or surprising about Mr. D.M.' demeanour or conduct when they lived together nor was her attention ever drawn to the child manifesting unusual pain or distress.

[33] The facts do not go as far as establishing this to be a case of intentional, malicious violence. The facts are more consistent with this being a case of criminal recklessness of sorts where Mr. D.M., despite his seeming ability to be insightful, grossly failed to measure his own strength in dealing with his newborn child. Further, if as he alluded to in his statement, he thought for one moment that it was a good idea to be rough with the child in order to toughen him up, then he exercised thoughtless and very immature judgment which created an obvious foreseeable risk of harm.

[34] In considering the submissions of counsel, the relevant case law, the exhibits filed, the pre-sentence report, the victim impact statement, the principles of sentencing and the aggravating and mitigating factors the court would considers 12 to 24 months custody as an appropriate sentencing range.

[35] The court remains mindful that Mr. D.M. does not have a criminal record, has maintained positive, helpful relationships in his life and is a good candidate for community supervision. This being said, the court has not lost focus of the fact, as expressed by the Crown, that Mr. D.M. has not provided a personal statement showing 'insight' into his actions.

[36] The court must also recognize the public abhorrence of this type of crime. All above observations must be measured against the serious nature of the crime which involves injury to a defenceless child. On that basis, there is a need that the sentence in large part address the wider public interest expressed through the principles of denunciation and deterrence.

[37] The sentence to be imposed shall include a period of probation extending 2 years. In addition to the mandatory terms set out in section 732.1(2) of the Code, the following conditions shall apply:

1. Mr. D.M. shall report to probation services forthwith upon his release from custody and as required by probation services;

2. He shall remain within Ontario unless written permission to go outside that jurisdiction is obtained from the court or a probation officer;

3. He must consult with probation services about the need to complete a follow-up parenting program following his release;

4. He must not associate with or communicate directly or indirectly with L.N.. If he is allowed access, arrangements must be done through a third party approved by her or the Children's Aid Society or pursuant to the terms of a family court order;

5. He is to discuss with his probation officer taking a follow-up anger management counselling program.

[38] Because of the very positive steps taken by Mr. D.M., the absence of any criminal record, the encouragement he has received from those who support him and the very strong likelihood that he shall not re-offend, it shall not be necessary to impose a custodial sentence at the high end of the appropriate range.

[39] In the court's view, taking all circumstances into account the necessary degree of denunciation and deterrence can be effected in the unique circumstances of this case by imposing a sentence at the lower end of the appropriate range. The period of custody to be served by Mr. D.M. shall be 12 months.

[40] This is a primary designated offence as defined by section 487.04 of the Code. There shall be an order that Mr. D.M. provide a small sample of his blood for DNA analysis and data bank purposes.

[41] This is also an offence requiring a mandatory order under section 109 of the Code prohibiting Mr. D.M. from possessing any firearms, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for a period of 10 years.

[42] The sentence, therefore, shall be as follows:

a) A period of custody of 12 months;

b) Probation for a period of 2 years;

c) A DNA order; and

d) A section 109 prohibition.

Released: July 16, 2012

Signed: "Justice Randall W. Lalande"